Lead Opinion
| ,We accepted the certified question presented to this court by the United States Court of Appeals, Fifth Circuit, in Faulk v. Union Pacific Railroad Company,
The salient facts of this case are not in dispute. The predecessor(s) of the defendant, Union Pacific Railroad Company (“Union Pacific”), acquired the right to build a railroad over the property at issue in this case, located in Ouachita Parish, Louisiana, in the late 1880s. The railroad company provided not only public crossings over its tracks but also private crossings for the convenience of landowners, whose large tracts of land were divided by the railroad tracks.
Sometime in 2006, Union Pacific began posting written notices at selected private railroad crossings, indicating its intent to close those crossings. On January 22, 2007 the plaintiffs, who allege their farming operations would be disrupted by the closure of the private crossings, on which they relied to move farming equipment and materials from one section of farmland to another separated by the railroad tracks, filed suit in the Fourth Judicial District Court in Ouachita Parish,
In March 2007 Union Pacific removed the suit to the United States District Court for the Western District of Louisiana, based on diversity jurisdiction, and filed a counterclaim seeking declaratory and injunctive relief to permit it to close the private crossings and to prevent the plaintiffs from interfering in either the creation or closure of crossings.
Shortly after the filing of this litigation, the Louisiana Legislature passed 2008 La. Acts, No. 530, effective August 15, 2008,
On the filing of motions for summary judgment by the parties, the federal court in the instant case granted a partial summary judgment to Union Pacific on the “lessee” plaintiffs’ claims,
On review, the Fifth Circuit held that the district court had improperly reached the issue of whether LSA-R.S. 48:394 results in an unconstitutional taking, citing the basic jurisprudential tenet that courts should avoid reaching constitutional questions unnecessarily and pointing out that Union Pacific had not established whether it had ownership rights over the property at issue. The Fifth Circuit vacated the district court ruling as to Union Pacific’s “as-applied challenge”
On remand to the federal district court, the plaintiffs conceded that Union Pacific has an interest in the nature of a real right under Louisiana law and that the interest was sufficient to permit it to properly assert the question of the validity of |fithe statute in question; although, the parties disputed the precise nature of the interest, with the plaintiffs contending the railroad’s interest was a servitude of passage, while Union Pacific asserted “fee title” to the land beneath its railroad. The federal district court concluded that the railroad has only a servitude over the plaintiffs’ lands, after considering the language of the pertinent deeds and the fact that the plaintiffs and/or their ancestors-in-title had paid ad valorem taxes on these properties through
Thereafter, the federal district court certified to the Fifth Circuit two questions: “(1) ‘If Union Pacific does not have ownership rights to the private railroad crossings, does it have standing to challenge Louisiana Revised Statute 48:394 (“the Act”)? (2) If so, is the Act constitutional under the United States and Louisiana Constitutions?’ ” See Faulk v. Union Pacific Railroad Company,
Though noting that the parties failed to brief the standing question, the Fifth circuit addressed the issue, “due to its jurisdictional dimensions,” and concluded that Union Pacific’s possession of a servitude constitutes a sufficient right to confer standing in this case. See Faulk v. Union Pacific Railroad Company,
Having resolved the first issue, the Fifth Circuit certified the remaining question to this court, as to whether LSA-R.S. 48:394 violates the Louisiana Constitution’s prohibition on takings, noting that Union Pacific had waived federal constitutional questions previously raised. See Faulk v. Union Pacific Railroad Company,
LAW AND ANALYSIS
As a general rule, statutes are presumed to be constitutional, and, the party challenging the validity of a statute has the burden of proving its unconstitutionality. Louisiana Federation of Teachers v. State, 13-0120 (La.5/7/13),
Unlike the federal constitution, the Louisiana Constitution’s provisions are not grants of power but instead are limitations on the otherwise plenary power of the people of the state exercised through its legislature. Therefore, the legislature may enact any legislation that the state constitution does not prohibit. Louisiana Municipal Association v. State, 04-0227 (La.1/19/05),
Consequently, a party challenging the constitutionality of a statute must point to a particular provision of the constitution that would prohibit the enactment of the statute and must demonstrate clearly and convincingly that it was the constitutional aim of that provision to deny the legislature the power to enact the legislative instrument in question. Louisiana Federation of Teachers v. State,
Because it is presumed that the Louisiana Legislature acts within its | constitutional authority in promulgating a statute, this court must construe a statute so as to preserve its constitutionality when it is reasonable to do so. In other words,
The Louisiana Constitution is the supreme law of this state to which all legislative acts must yield. When a statute conflicts with a constitutional provision, the statute must fall. Id.
In the instant case, Union Pacific contends that since LSA-R.S. 48:394 prevents closure or removal of private crossings without prior approval by the LPSC, it violates the prohibition on takings set forth in LSA-Const. Art. I, § 4.
When there has been a taking, the Louisiana Constitution requires compensation even though the state has not initiated expropriation proceedings in accordance with the statutory scheme set up for that purpose. This “inverse condemnation” action provides a procedural remedy to a “property” owner
Inverse condemnation claims derive from the Taking Clauses contained in both the Fifth Amendment of the U.S. Constitution and Article I, Section 4 of the Louisiana Constitution. Under the Louisiana Constitution, the action for inverse [^condemnation is available in all cases where there has been a taking or damaging of property
Recognizing the abstract nature of the concept of the taking and damaging of legal property rights, this court in State, Department of Transportation and Development v. Chambers Investment Company,
Whether a Recognized Species of Property Right has been Affected
We first note that, although the common law concept of a “fee simple” title (a term used by the parties in this case) to immovable property is analogous to Louisiana’s concept of the “ownership” of immovable property and the term “fee simple” has at times crept into Louisiana jurisprudence and statutory law, it should be pointed out that, under Louisiana’s Civil Code, “[t]he predominant property right is ownership, which is a complete, free, and exclusive
Louisiana Civil Code Article 476, appearing in Book II, “Things and the Different Modifications of Ownership,” directs: “One may have various rights in things: 1. Ownership; 2. Personal and predial servitudes; and 8. Such other real rights as the law allows.” Article 477 of the Civil Code defines “ownership” as “the right that confers on a person direct, immediate, and exclusive authority over a thing.” Article 477 further states: “The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.”
The right of ownership, which according to traditional civilian doctrine includes the elements of usus, fructus, and abusus, may lawfully be dismembered in a variety of ways by the intent of the owner or by operation of law. Richard v. Hall, 03-1488 (La.4/23/04),
Thus, the owner of a thing may transfer to another, in whole or in part, the right of enjoyment and of consumption of the thing. See Marcel Planiol and George Ri-pert, Treatise on the Civil Law, Vol. 1, Part 2, No. 2337, p. 384-85 (12th ed.1939) (translated by the Louisiana State Law Institute with the authority of Librairie Générale de Droit et de Jurisprudence, Paris (1959)). If the owner transmits all of his rights, it is said that he alienates the thing — he performs an act translative of ownership. If the owner grants merely a right of partial enjoyment of the thing, he dismembers his ownership — he creates upon the thing'a real right of servitude. He is still owner but his ownership has been dismembered — someone else has a part of his rights upon the thing. See id. See also Union Oil & Gas Corporation of Louisiana v. Broussard,
A right of way granted to a public railroad does not transfer ownership of the affected property under Louisiana law, unless the deed itself evidences that the parties intended otherwise. See Texas & Pac. Ry. Co. v. Ellerbe,
Louisiana’s Civil Code recognizes in Article 481 that “[t]he ownership and the possession of a thing are distinct. Ownership exists independently of any exercise of it and may not be lost by nonuse....”
Further, pursuant to LSA-C.C. art. 645, “[a] right of use is regulated by application of the rules governing usufruct and predial servitudes to the extent that their application is compatible with the rules governing a right of use servitude.” Two pertinent articles appearing in the rules governing predial servitudes include Articles 743 and 748, which provide:
Art. 743. Accessory rights
Rights that are necessary for the use of a servitude are acquired at the time the servitude is established. They are to be exercised in a way least inconvenient for the servient estate.
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Art. 748. Noninterference by the owner of servient estate
The owner of the servient estate may do nothiny tendiny to diminish or make more inconvenient the use of the servitude.
If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate.
(Emphasis added.)
When both Article 743 and Article 748 are applied to the right of use servitude at issue in this case, only by maintaining the existing private crossings is inconvenience to the parties (both the plaintiffs and Union Pacific) minimized. The plaintiffiland-owners (who would be inconvenienced by the removal of the private crossings, in having to leave their property and travel via public roadways to reach the remainder of their property on the opposite side of the railroad tracks) would continue to be able to access their property directly via the railroad crossings if the private crossings are maintained; thus, Union Pacific’s exercise of the right of use servitudes continues to be “in a way least inconvenient for the 11fiservient estate[s],” as directed by Article 743. Correspondingly, the continued use by the plaintiffs of the private railroad crossings, in existence at the time the instant dispute arose, “do[es] nothing tending to diminish or make more inconvenient the use of the servitude[s],” in accord with Article 748. (Emphasis added.) In other words, because the private railroad crossings already exist and the plaintiffs already use them, the continued use does not diminish Union Pacific’s activities on its right of use servitudes, nor does the continued use of the private crossings by the plaintiffs increase the inconvenience to Union Pacific since it already maintains the private crossings.
Notably, however, the counterpart to current LSA-C.C. art. 645 (directing that Articles 743 and 748, along with the other articles on predial servitudes, be applied to rights of use), was former Article 628 (in effect in 1888, 1889, and 1910 when the deeds at issue were executed
Another difference between current property law and the law preceding the revisions referenced hereinabove is found in the contrast between current Civil Code Article 644 and former Civil Code Article 612 (relating to usufructs, but made applicable to rights of use by former Article 628, supra). While current Article 644 provides that “[a] right of use is not extinguished at the death of the [ innatural person or at the dissolution of any other entity having the right unless the contrary is provided by law or contract,” former Article 612 expressly stated that “[i]f ... corporations, congregations or other companies are suppressed, abolished or terminate ... the usufruct ceases.... ” In addition, former Article 612 also stated that a right “granted to corporations, congregations or other companies,” which is “deemed perpetual,” “lasts only thirty years.” This latter concept was carried forward in current Article 608 (relating to usufructs, but made applicable to rights of use by current Article 645, supra), which provides in pertinent part: “In any event, a usufruct in favor of a juridical person shall terminate upon the lapse of thirty years from the date of the commencement of the usufruct.”
Yet another difference is found in current LSA-C.C. art. 643, which allows a right of use servitude to be transferred, stating, “The right of use is transferable unless prohibited by law or contract.” However, under prior law the right of use could not be transferred, as former Article 638 provided: “There is this difference between the person who has the use and the usufructuary, that the person who has the use can neither transfer, let, nor give his right to another.”
The question raised relative to these three significant changes in Louisiana property law is whether the revisions are substantive, procedural, or interpretive. See LSA-C.C. art. 6 (“In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.”). If the prior law were to be applied to the instant case, the possible inapplicability of LSA-C.C. art. 743 (“Rights that are necessary for the use of a servitude ... are to be exercised in a way least inconvenient for the servient estate”) and LSA-C.C. art. 748 (“The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.”) would not affect the result we reach herein, as the railroad company would nonetheless |17lack exclusivity over the property on which it has a right of use, and the landowners retain ownership of the property beneath the railroad tracks, subject only to Union Pacific’s right of use, entitling the landowners, at the very least to cross over the tracks to reach their property on the other side. However, if former LSA-C.C. art. 612 (“The usufruct which is granted to corporations ... or other companies, which are deemed perpetual, lasts only thirty years.”) and former LSA-C.C. art. 638 (“There is this difference between the person who has the
While we note these differences between the current property laws and those in existence at the time the instant “Deed[s] to Right of Way” were confected, we leave for the federal courts to determine whether the revisions to the cited laws touch upon any of the matters raised by the parties in this case.
We turn now to an application of Louisiana’s property law to the facts of the instant case, vis-a-vis whether a recognized species of property right belonging to Union Pacific has been affected.
The contracts between Union Pacific’s predecessor(s) and the landowners, 118entitled “Deed to Right of Way,” generally stated as follows, in pertinent part:
For and in consideration of the sum of one dollar, and in consideration of the further fact that the Houston, Central Arkansas and Northern Railway Company propose to build its contemplated road over and across the following described land, to-wit:
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Situated in Ouachita Parish, State of Louisiana: Now, if the said line of road, shall pass over the above lands, then and in that event, I hereby sell and grant the said Company the right of way, of one hundred feet in width, over the same, if cleared, and one hundred and fifty feet if in woods, for the consideration expressed above. It being understood that said Company shall pay damages for buildings, fencing and orchards, which may be included in the right of way, when same are destroyed by the Company. [Emphasis added.]
In addition, several of the deeds expressly reserved to the landowners the right to cultivate the land within the right of way (by language stating “up to the railroad track” or “on said right of way on
Based on the applicable Louisiana property law set forth hereinabove, the “Deed[s] to Right of Way,” granted to the railroad company named therein, a right |19of use servitude across the respective lands. Therefore, subsequent acquisition by Union Pacific of the right of use servi-tudes would have given to Union Pacific a real right in the property and, thus, standing to assert a “taking” claim.
Whether the Affected Property has been ' Taken or Damaged in a Constitutional Sense
Next, we examine the second prong for the assertion of a Article I, Section 4 challenge: whether the property has been taken or damaged in a constitutional sense.
Despite the absence of express agreements for the installation of private crossings in all but one of the deeds at issue in this case, the railroad company did, in fact, construct private crossings for the convenience of the plaintiffs’ ancestors-in-title. The affirmative actions of the railroad company, in building these private crossings, give rise to the inference that the railroad company did not previously claim the exclusive right to use the lands subject to its right of use.
Considering the fact that the railroad company constructed the private railroad crossings for the benefit of the landowners, whose land was subject to the railroad company’s right of use, along with the fact that these landowners and their successors-in-interest have used the private crossings for more than 100 years, it may be inferred that it was the intent of the parties, in contracting for the right of use servitudes, that private crossings would be provided for the convenience of the landowners.
| ¡^Furthermore, Louisiana has historically imposed on railroads the duty to construct “usual and necessary” safeguards, such as private crossings and cattle-guards, even though not expressly contracted-tor by the parties. See Heath v. Texas & Pacific Railway Company,
As stated in the foregoing discussion, we must conclude that the plaintiff/landowners continue to own the property beneath the railroad tracks, and the railroad company received only the right of use of the landowners’ property and provided private crossings for the landowners’ convenience so they might cross the tracks when not in use by the railroad company. Consequently, the principle stated in Avenal v. State,
Union Pacific’s contention that it is now entitled to exclusive use of the land on which it only has a right of use servitude is clearly without merit. A right of use, under Louisiana law, is a limited personal servitude, not ownership. I^The plaintiff/landowners retain ownership of the property at issue.
We find no merit in Union Pacific’s contention that the continuance of the private crossings at issue in this case constitutes a constitutional taking.
However, Union Pacific also asserts that the application of LSA-R.S. 48:394, in prohibiting it from closing private crossings without first submitting to the requisite administrative process (i.e., providing 180-day advance ..notice to the LPSC and affected landowners and participating in a public hearing), constitutes a temporary physical taking.
§ 354. Foreign corporations operating in state to be subject to its jurisdiction
Railroad companies or corporations availing themselves of the provisions of R.S. 45:352 and 45:353 shall maintain a domicile, and main and general offices in Louisiana, and are subject to the control and regulations of the laws of Louisiana and the Louisiana Public Service Commission. [Emphasis added.]
The LPSC was created by former Article VI, Section 3 of the Constitution of 1921, as the successor of the Railroad Commission, and the authority of the new commission was extended to also give it the power of supervision, regulation and control over local public utilities (specifically, street railways, gas, electric light, heat, power, and waterworks).
We further note 49 U.S.C.A. § 20106, which provides, in pertinent part:
A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad security matters), prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation,, or order related to railroad safety or security when the law, regulation, or order—
(A) is necessary to eliminate or reduce an essentially local safety or security hazard;
| ¾(6) is not incompatible with a law, regulation, or order of the United States Government; and
(C) does not unreasonably burden interstate commerce.
Clearly, with respect to railroad crossings, Louisiana has a significant safety interest in keeping open crossings, the absence of which would result in the diversion of vehicular traffic onto public roadways, which presents an increased hazard when the traffic so diverted consists of over-sized, and often heavily loaded, farm equipment.
Moreover, the “enforcement of uncompensated obedience to a regulation passed in the legitimate exertion of the
With respect to Senate Bill 243, which became LSA-R.S. 48:394, the purpose of the bill was stated by its author, Senator Joe McPherson, in testimony before the Senate Committee on Transportation, as providing: a procedure for closing or removal of private railroad crossings, an “orderly process for the closure of farm crossings ... [, and] an orderly method of notification.” Senator McPherson stated that “[c]urrently, there is a posting of a notice on the closest light pol[e] or tree limb to the crossing and if the farmer or landowner happens to come by and sees it then that is their receipt of notification.” Citing the absence of any governing law on notification in such circumstances, Senator McPherson stated that the bill would “provide proper notification and a hearing process before that closure occurs” and would provide “a means ... to protect the citizens of [^Louisiana.”
The federal appellate court’s summation of the purpose of LSA-R.S. 48:394 (that it was enacted “to balance the rights of the railroad company and the owners of private crossings by ensuring that the railroad companies do not unilaterally close private crossings unless doing so is necessary for the railroads to continue operating free from substantial burdens” (see Faulk v. Union Pacific Railroad Co.,
Revised Statute 48:394 requires any railroad company desiring to close or remove a private crossing in Louisiana, to provide a written request, no less than 180 days prior to the proposed closing or removal, by registered or certified mail, to the LPSC and to the owner(s) of record of the private crossing(s) traversed by the rail line. The written request must state the manner in which the private railroad crossing “unreasonably burdens or substantially interferes with rail transportation.” See LSA-R.S. 48:394(A)(1).
Following publication of the railroad’s request, LSA-R.S. 48:394(B) requires publication of a 15-day advance notice of hearing and an attempt by the LPSC to directly notify affected record landowners. See LSA-R.S. 48:394(B). Thereafter, a public hearing is held by the LPSC, during which “parties in interest” have an opportunity to be heard. The public hearing is required to be held not less than 60 days after receipt of the railroad’s closure request. See id. If, after the public hearing, the LPSC determines that the private railroad crossing “unreasonably burdens or substantially interferes with rail transportation,” the LPSC is required to publish a notice stating the manner of the crossing closure in the official journal of the parish where such crossing is located and in the LPSC’s official bulletin. See LSA-R.S. 48:394(C).
An appeal from a decision of the LPSC is provided for by LSA-Const. Art. l^IV, § 21(E), which states:
Appeal may be taken in the manner provided by law by any aggrieved party or intervenor to the district court of the domicile of the commission. A right of direct appeal from any judgment of the district court shall be allowed to the supreme court. These rights of appeal shall extend to any action by the commission, including but not limited to action taken by the commission or by a public utility under the provisions of Subparagraph (3) of Paragraph (D) of this Section.
Article IV, Section 21(E) makes it clear that “any action” of the LPSC may be appealed to the district court, and any judgment of a district court sitting in review of an LPSC action is directly appeal-
In light of these considerations, it cannot seriously be disputed that investing the LPSC with the authority to apply the relevant law, as stated in LSA-R.S. 48:394, to requests for private railroad crossing closures, is an exercise of this state’s police power.
Nevertheless, LSA-R.S. 48:394 did not become effective until after the instant suit had been filed. Therefore, we will examine whether application of the statute could be retroactively applied in the instant case.
In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary. LSA-C.C. art. 6. Concomitantly, LSA-R.S. 1:2 (“No Section of the Revised Statutes is retroactive unless it is expressly so stated”) is construed as being co-extensive with LSA-C.C. art. 6. Mallard Bay Drilling, Inc. v. Kennedy, 04-1089 (La.6/29/05),
Louisiana’s prohibition against legislation having retroactive effect applies |27to substantive laws only.
This court has interpreted the retroac-tivity provisions of LSA-C.C. art. 6 and LSA-R.S. 1:2 to require a twofold inquiry: (1) we must ascertain whether the legislature expressed in .the enactment its intent regarding retrospective or prospective application — if the legislature did so, our inquiry is at an end; (2) but, if the legislature did not, we must classify the enactment as substantive, procedural, or interpretive. See id.,
The Louisiana Legislature made no statement in 2008 La. Acts, No. 530, regarding the retroactivity of LSA-R.S. 48:394. However, upon examination of its provisions and the legislative history referred to hereinabove, we conclude that the effect of LSA-R.S. 48:394 is procedural and therefore may be applied retroactively. See Dripps v. Dripps,
As previously noted, a method of appealing any decision of the LPSC is set forth in LSA-Const. Art. IV, § 21(E), which encompasses an LPSC decision resulting from an action instituted pursuant to LSA-R.S. 48:394. Further, the provisions of LSA-R.S. 48:394 do not prohibit interested parties from litigating l^any substantive issues arising out of their respective property rights in another forum;
We conclude that LSA-R.S. 48:394 is procedural, as it merely directs the steps that must be taken, and the forum that must first approve, the closure of a private railroad crossing.
There has been no showing that giving this procedural law retroactive effect in the instant case impairs contractual obligations or disturbs vested rights. Although Union Pacific has argued that it had the right to close the crossings at its discretion before the enactment of LSA-R.S. 48:394 and that LSA-R.S. 48:394 now impairs this right, the Louisiana property law discussed herein does not support the exclusivity of use over the landowners’ property sought by Union Pacific. Therefore, we find no merit in Union Pacific’s contention.
We further note that federal jurisprudence recognizes that compensation may be required when a government regulation of private property is so onerous that its effect is tantamount to a direct appropriation or ouster.
However, no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the courts have recognized few invariable rules in this area. Most takings claims turn on situation-specific factual inquiries. Id. Some considerations for determining whether a taking has occurred include: the character of the land at issue; the property owner’s distinct investment-backed expectations, a matter often informed by the law in force in the state in which the property is located; and the degree to which the invasion is intended or is the foreseeable result of authorized government action. See id., — U.S. at -,
Nevertheless, Supreme Court regulatory takings jurisprudence instructs that |siwhen a complainant has not yet obtained a final administrative decision, the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulatory law at issue to the particular property in question. See Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City,
A property owner may not establish a taking before the regulatory agency charged with the decision-making authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. See Palazzolo v. Rhode Island,
In the instant case, Union Pacific failed to submit the matter to the regulatory authority designated by the governing statute, LSA-R.S. 48:394, the LPSC, depriving the LPSC of the opportunity to grant Union Pacific the right to close the railroad crossings at issue. If Union Pacific’s request is granted, there can be no claim of a regulatory “taking.” Until the LPSC rules on Union Pacific’s intent to close the private crossings at issue, Union Pacific’s “taking” claim, as to LSA-R.S. 48:394, is not ripe for adjudication.
| o2Having found that Union Pacific failed to establish that a constitutionally prohibited taking has occurred, either in the continued existence of the private crossings at issue or in the regulatory procedure before the LPSC established by LSA-R.S. 48:394, we find it unnecessary to address the final, prong (whether any alleged regulatory taking occasioned by LSA-R.S. 48:394 is for a public purpose) of the three-prong analysis set forth in State, Department of Transportation and Development v. Chambers Investment Company, supra. Accordingly, we conclude that LSA-R.S. 48:394, as applied to the instant case, has not effected an unconstitutional taking under LSA-Const. Art. I, § 4.
DECREE
We have answered the certified question as set forth in this opinion. Pursuant to Rule XII, Supreme Court of Louisiana, the judgment rendered by this court upon the question certified shall be sent by the clerk of this court under its seal to the United States Court of Appeals for the Fifth Circuit and to the parties.
CERTIFIED QUESTION ANSWERED.
Notes
. See Faulk v. Union Pacific Railroad Company, 14-1598 (La.10/31/14),
. The Fifth Circuit further stated:
To the extent the [Louisiana Supreme] Court deems appropriate, we include within this question the related issue of to what extent a railroad enjoys exclusive rights in any of the existing crossings, particularly against the servient estate. We disclaim any intent to limit the [Louisiana Supreme] Court to the precise question asked.
See Faulk v. Union Pacific Railroad Company,
.On this issue, the plaintiffs specifically allege the following pertinent allegations in their petition:
11.
In order to conduct farming operations on both sides of the railroad, Plaintiffs must be able to pass across the right of way with farm equipment, materials, and the like. Since the time when these rights of way were granted, they or their predecessors have in fact continuously farmed on both sides of the railroad and have in fact passed across the' right of way with men, materials, and equipment.
12.
To enable that passage, there have at all pertinent times been crossings over the railroad, in the form of roads, most of which have been private, not public, roads. These were historically constructed and maintained by the railroad.
13.
These private crossing points are critical to practical farming operations: and, as to some of the lands, they constitute the only means of access to the farmland on the other side of the tracks without passing over the land of other owners.
14.
There are few public roads in the area which cross the track, and those are miles apart. Without the private roads and crossings, in order to cross the tracks with farm equipment and harvested crops, Plaintiffs will be forced to drive heavy farm machinery for miles, and to use roadways in many instances which are not practically usable by such heavy loads in bad weather.
15.
The effect will be to seriously impair the utility and value of the land and impair the ability of Plaintiffs to practically and profitably carry out farming operation on it. It will also create danger to the public by forcing Plaintiffs to regularly operate slow and wide farm equipment on a four-lane U.S. Highway and other public roads.
. We note that the plaintiffs also allege that the defendant has failed to maintain arid preserve the natural drainage of water across the servitude, despite notice and demand from the plaintiffs.
. Act 530 was amended by 2010 La. Acts, No. 858, effective June 30, 2010. The 2010 amendment made three changes to the statute: (1) the last sentence of Paragraph (A)(1), which had previously read: “the reason the railroad company proposes to close such crossing,’’ was changed to read: "the manner in which such private railroad crossing un
.In a separate suit, Union Pacific immediately challenged the validity of this statute, seeking to have LSA-R.S. 48:394 and LPSC General Order No. R-30712 (issued in implementation of the statute) declared facially preempted by the Interstate Commerce Commission Termination Act of 1995 ("ICCTA”), 49 U.S.C. § 10501, as administered by the U.S. Surface Transportation Board ("STB”), and requesting that enforcement be enjoined. Recognizing that state police powers have historically extended to railroad crossing disputes, the federal district court held that, although "the Act and Order impose a pre-clearance requirement on railroad carriers before a private rail crossing may be closed,” "this regulation does not have the effect of managing or governing the operations of rail transportation and is not expressly preempted under the ICCTA.” See Union Pacific Railroad Company v. Louisiana Public Service Commission,
. The plaintiffs who asserted claims as lessees of property served by the private railroad crossings were found to have been: Corey Farms, LLC, Faulk Farms, Inc., Sherman Shaw, Mrs. T.P. Godwin, and William P. Nadler. See Faulk v. Union Pacific Railroad Company,
. Although the federal district court originally stated that date was June 30, 2008, the effec
. The Fifth Circuit expressly stated, "In this action, Union Pacific brings an .as-applied challenge to Section 48:394.” See Faulk v. Union Pacific Railroad Company,
. Article I, Section 4, provides, in pertinent part:
(A) Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
(B)(1) Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Except as specifically authorized by Article VI, Section 21 of this Constitution property shall not be taken or damaged by the state or its political subdivisions: (a) for predominant use by any private person or entity; or (b) for transfer of ownership to any private person or entity-
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(4) Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question.
(5) In every expropriation or action to take property pursuant to the provisions of this Section, a party has the right to trial by jury to determine whether the compensation is just, and the owner shall be compensated to the full extent of his loss. Except as otherwise provided in this Constitution, the full extent of loss shall include, but not be limited to, the appraised value of the property and all costs of relocation, inconvenience, and any other damages actually incurred by the owner because of the expropriation.
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. All real rights, such as ownership, personal servitudes, predial servitudes,' and mineral servitudes, are "property” in the narrow sense. A.N. Yiannopoulos, 2 La. Civ. L. Treatise, Property § 3 (4th ed.2014). See also Avenal v. State, 03-3521 (La.10/19/04),
. See also LSA-R.S. 19:1 et seq. (relative to expropriation proceedings in general); LSA-R.S. 45:353 (enacted by 1902 La. Acts, No. 73, § 1) ("Foreign railway companies extending, constructing and operating their lines of railroad into and through Louisiana may expropriate land and other property for their railroad, right of way, switches, sidings, branches, spurs, depots, and depot grounds, yards, and any land and property for railroad purposes, in the manner provided by the expropriation laws of the state.”).
. Under the U.S. Constitution’s Taking Clause, in order for a taking to be compensa-ble, it must constitute an actual, permanent invasion of the property, amounting to an appropriation of, and not merely an injury to, the property (see Loretto v. Teleprompter Manhattan CATV Corp.,
. Subsequent to the 1888 and 1889 execution of the "Deed to Right of Way” contracts, under which Union Pacific's predecessor acquired the servitude of right of use on the plaintiffs’ lands, the 1870 Civil Code property law articles were extensively revised, by: 1976 La. Acts, No. 103, effective January 1, 1977 (revising Title III, "Personal Servitudes” (previously, "Usufruct, Use and Habitation”)); 1977 La. Acts, No. 514, effective January 1, 1978 (revising Title IV, "Predial Servitudes” (previously, “Predial Servitudes or Servitudes of Land”)); 1978 La. Acts, No. 728, effective January 1, 1979 (revising Title I, "Things”); and 1979 La. Acts, No. 180, effective January 1, 1980 (revising Title II, "Ownership”). We cite herein to the current property law articles unless the prior law was significantly changed, in which case, the old law will be noted. See Palomeque v. Prudhomme, 95-0725 (La.11/27/95),
. There are two kinds of servitudes: personal servitudes and predial servitudes. LSA-C.C. art. 533. A personal servitude is a charge on a thing for the benefit of a person. There are three sorts of personal servitudes: usufruct, habitation, and right of use. LSA-C.C. art. 534.
. A predial servitude is a charge on a ser-vient estate for the benefit of a dominant estate. The two estates must belong to different owners. LSA-C.C. art. 646. If a servitude is imposed on an estate in favor of a person, rather than in favor of another estate, it is not a predial servitude but a personal servitude of right of use, pursuant to LSA-C.C. arts. 639-645. See LSA-C.C. art. 646, 1977 Revision Comment (e).
. In Parkway Development Corporation v. City of Shreveport,
. "Real rights” are an established category of important patrimonial interests. The term "real right” is employed in the Civil Code, in the Code of Civil Procedure, and in Louisiana jurisprudence: yet, it has not been legislatively defined. 2 La. Civ. L. Treatise, § 203. The term "real right” under the civil law defines the relation of man to things. A "personal right,” on the other hand, defines a person’s relationship to another person and refers merely to an obligation one owes to another. See Reagan v. Murphy,
. See LSA-C.C. art. 3448 ("Prescription of nonuse is a mode of extinction of a real right other than ownership as a result of failure to exercise the right for a period of time.”).
. See also Former LSA-C.C. art. 658 ("The part of an estate upon which a servitude is exercised does not cease to belong to the owner of the estate; he who has the servitude has no right of ownership in the part, but only the right of using it. Hence the soil of public roads belongs to the owner of the land on which they are made, though the public has the use of them.... ”).
. Although one of the deeds filed into the record was executed in 1910, it did not appear to have been the original title document by which the railroad acquired the right of use for its railroad, since it was stated in the 1910 contract that it was executed because "there is, at present, confusion and a lack of uniformity as to the extent of the right of way....” (Emphasis added.) The fact that only the "extent” of the right of way was at issue implied the prior existence of the right
. See also LSA-Const. Art. I, § 23 (“No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be enacted.-”); State, Department of Highways v. Tucker,
. All but two of the deeds contained these general terms, with only a few alterations, and were executed in 1888 and 1889. None of these general form deeds, containing the language quoted above, included any provision that would convey an interest to any successor or assignee of the railroad compány named therein, Houston, Central Arkansas and Northern Railway Company. Of the two deeds that were not in the general form quoted, one was executed in 1889 and conveyed only a fifty foot "right of way” in exchange for the "sum of three hundred dollars cash”; this deed also conveyed the interest to the named railroad company and its "assigns.” The other non-standard form contract was, as mentioned hereinabove, executed in 1910 and stated that "there is, at present, confusion and a lack of uniformity” as to the extent of the right of way of the "Saint Louis, Iron Mountain and Southern Railway Company”; this deed also conveyed the interest to the named railroad company and “its successors and assigns.”
. The extent and manner of use of conventional servitudes, established by title, are primarily determined in accordance with the intent of the parties as expressed in the provisions in the title. 4 La. Civ. L. Treatise, § 7:2. "If the title is silent as to the extent and manner of use of the servitude, the intention of the parties is to be determined in the light of its purpose.” LSA-C.C. art. 749. Ambiguities in the title may be resolved by suppletive provisions of the Civil Code, the situation of the estates, and past acts of use and possession. Id. (citing 2800 Associates, L.L.C. v. Eagle Equity Limited Partnership # 3,
. See also Illinois Central R. Co. v. Louisiana Public Service Commission,
. If the servitude were to terminate, pursuant to LSA-C.C. arts. 526, 601, and 628, the railroad company would be entitled to remove the constructions placed upon the plaintiff/landowners’ property, and the full use of the property would return to the owners.
. The regulation of railroad companies operating in Louisiana is long-standing. We note drat the Railroad Commission of Louisiana was the predecessor regulatory agency to the LPSC; however, the Railroad Commission’s power was confined, by Article 284 of the Constitution of 1898 and of 1913, to railroads, steamboats and other water craft, sleeping cars, passenger and freight tariffs and service, express rates, and telephone and telegraph charges. See State v. City of New Orleans,
. Jim Harper, a farmer from Rapides Parish, producing sugar cane, rice, cotton, and corn, who was at that time vice president of the Louisiana Farm Bureau Federation, testified that the closure of railroad crossings by Union Pacific affected him personally, preventing him from accessing his fields. Mr. Harper related that a closure was posted on his property, and he subsequently met with a railroad representative, informing the representative that he had no other access to his fields other than the railroad crossing; however, the crossing on his property was closed nonetheless. Mr. Harper stated that, after the crossing was closed, he had to travel over a mile down the public highway, through the town of Cheneyville,- a significant number of times per day with his farm equipment and harvested crops to get to his “loading site.” See Meeting, Committee on Transportation, Louisiana House of Representatives, 2008 Regular Session, May 19, 2008, S.B. 243, available at http://house.Iouisiana.gov/H_ Video/2008/May2008.htm; Minutes, Committee on Transportation, Highways & Public Works, Louisiana Senate, 2008 Regular Session, April 17, 2008, S.B. 243 (testimony of Jim Harper).
. Louisiana Revised Statute 48:394 provides in full:
A. (1) Any railroad company operating in this state which desires to close or remove a private crossing shall, no less thanone hundred eighty days prior to the proposed closing or removal, provide a written request by registered or certified mail to the Louisiana Public Service Commission and to the owner or owners of record of the private crossing traversed by the rail line. The written request shall state the manner in which such private railroad crossing unreasonably burdens or substantially interferes with rail transportation.
(2) The Louisiana Public Service Commission shall publish the written request from the railroad company in the commission’s official bulletin for no less than twenty-five days.
B. No private crossing shall be closed or removed by any railroad company until after a public hearing by the Louisiana Public Service Commission at which parties in interest have had an opportunity to be heard. Notice of the time and place of the hearing shall be published in the official journal of the parish and the commission's official bulletin and at least fifteen days shall elapse between the publication and the date of the hearing. In addition to notice by publication, and at least ten days prior to the hearing, a good faith attempt to notify the owner or owners of record of the property where the private' crossing is located shall be made by the commission by sending an official notice by registered or certified mail of the time and place of the hearing to the address or addresses indicated in the mortgage and conveyance records of the parish. The public hearing shall be held not less than sixty days after receipt of request of the railroad company as provided in Subsection A of this Section.
C. If, after such public hearing, the commission determines that the private railroad crossing unreasonably burdens or substantially interferes with rail transportation, the commission shall publish in the official journal of the parish where such crossing is located and in the commission's official bulletin a notice stating the manner in which such closure or removal shall be made and the date of such.
D. The provisions of this Section shall not apply when a private landowner or landowners and a railroad company enter into a consensual or negotiated written agreement or agreements to close a private railroad crossing.
. Although LSA-R.S. 1:2, unlike LSA-C.C. art. 6, does not distinguish between substantive, procedural, and interpretive laws, the jurisprudence has consistently construed the two provisions as being co-extensive, with LSA-R.S. 1:2 having limited applicability to substantive legislation. M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371 (La.7/1/08),
. We agree with the federal district court that "the legislative policy of La.Rev.Stat. 48:394 is clear. The legislative policy is to prevent railroads from closing private railroad crossings when there is no substantial need for the closure.” See Faulk v. Union Pacific Railroad Company,
. See LSA-Const. Art. V, § 16 (vesting district courts with original jurisdiction of all civil matters); Moore v. Roemer,
.Although we do not apply U.S. Supreme Court decisions mechanically to state law issues, even when the state and federal constitutions are similarly or identically worded, such decisions serve as guideposts, and we use them "if they are found to be logically persuasive and well-reasoned, paying due regard to precedent and the policies underlying
Concurrence Opinion
concurs.
hi concur in those portions of the opinion which specifically hold that La. R.S. 48:394 has not effected an unconstitutional taking of private property as applied to the facts of this case.